Duty to Accommodate
The BC Human Rights Tribunal and the courts expect employers to respect the skills, capabilities and potential contributions of each individual. Employers are encouraged to be innovative yet practical when considering how this may best be done.
Your “duty to accommodate” stems from the provisions of the Human Rights Code (HRC) requiring that you to provide inclusive working environments that respect the differences and the rights of a diverse society. The statutory prohibition against discrimination, and the duty to accommodate that arises from this prohibition, are intended to eliminate barriers, standards, requirements, practices, policies and rules that adversely affect people on the basis of one or more proscribed grounds.
The goal of accommodating differences is to enable the full and equitable participation of all members in society. The specific process of accommodation is not set out in the code, although certain practices, responsibilities and reasonable expectations have evolved through the case law.
There is no obligation on employers to provide the perfect solution. Each party involved in the accommodation process must be flexible and co-operative. The specific obligations of each party in the accommodation process are discussed in greater detail below.
Here are some important questions you should ask yourself before you claim to have exhausted the duty to accommodate:
- Have you investigated alternative approaches that do not have a discriminatory effect?
- If alternative standards were investigated and found to be capable of fulfilling your purpose, why were they not implemented?
- Is it necessary to have all employees meet one single standard for you to accomplish your legitimate purpose, or could standards reflective of group or individual differences and capabilities be established?
- Is there a way to do the job that is less discriminatory while still accomplishing your purpose?
- Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?
- Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles? Note that the task of determining how to accommodate individual differences may also place burdens on the employee and, if there is a collective agreement, a union.
THE EMPLOYER’S OBLIGATIONS
Once you know, or ought reasonably to know, that an employee requires accommodation, you must begin by making appropriate inquiries to obtain the relevant facts. For example, where an employee has a disability that requires accommodation, you must inquire into the employee’s current medical condition, the prognosis for recovery and the employee’s capabilities for alternative work. You must have sufficient knowledge about the employee’s needs to be able to determine if the employee can be accommodated short of undue hardship.
The duty to make inquiries will arise after an employee notifies you of the need for accommodation. This duty will also be triggered if the employee has not come forward to request accommodation, but as employer you ought to have been aware that the employee requires accommodation. You cannot simply avert your gaze and choose to ignore clear signals that an employee has a disability and/or requires accommodation on a protected ground. You are obligated to inquire into and deal with the possibility when it arises. This is especially important with respect to mental disabilities in situations where others around the employee may see signs of illness before the individual does.
Once it has been determined that a disability exists that requires accommodation, accommodation options must be identified and discussed with the employee and his/her union, where applicable. Complete documentation of inquiries made and options discussed is imperative.
In order to determine whether you can accommodate a disabled employee without incurring undue hardship, you should:
- act in good faith and make every reasonable effort to find a suitable accommodation;
- involve the union and the employee in the process;
- compare the employee’s physical limitations with the demands of the employee’s job;
- consider whether the employee’s job can be modified to accommodate the employee’s disability;
- obtain expert opinions or advice where needed;
- determine, if the employee cannot perform the core duties of his/her job, whether there is an alternate job available in the bargaining unit that the employee can perform, or that can be modified to accommodate the employee;
- consider, if no such positions are available, the availability of suitable vacant jobs outside the bargaining unit or in other bargaining units;
- ensure that you have considered all reasonably available options, including reasonable solutions suggested by the employee and the union;
- consider what has been done for other employees or this employee in the past; and
- consider the length of time of the required accommodation (i.e., is the situation temporary or permanent).
WHAT IS NOT REQUIRED OF THE EMPLOYER
Most of the decided cases indicate that an employer is not required to:
- satisfy unreasonable demands made by the employee;
- accommodate a disability the employer is not aware of, and could not reasonably have been aware of;
- create a job where none exists;
- assign the employee “make work” duties that are not of tangible benefit to the employer;
- bump another employee out of a position to accommodate a disabled employee;
- put the employee in a job he/she is not qualified for, or cannot perform safely or productively; or
- accommodate a disabled employee whose position has become redundant by offering alternate employment. In other words, the duty to accommodate does not protect an employee from layoff
THE EMPLOYEE’S OBLIGATIONS
The employee has an obligation to take reasonable steps to assist the employer in finding an appropriate accommodation. If the employee’s lack of participation hinders you in this regard, or if he/she refuses to accept and facilitate a reasonable accommodation, a grievance or complaint filed by the employee may be dismissed.
The law is clear that an employee cannot hold out for a perfect solution to his/her accommodation request. The employee must not refuse a reasonable, albeit imperfect, accommodation if no other accommodation is possible.
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